leans, 96 U. S. 97; Walston v. Nevin, 128 U. S. 578; Ex parte Wall, 107 U. S. 265; Hustalo v. California, 110 U. S. 516; Hayes v. Missouri, 120 U. S. 68; Railway v. Mackey, 127 U. S. 205; Hallinger v. Davis, 146 U. S. 314; In re Kemmler, 136 U. S. 436. An examination of both these classes of cases under the fourteenth amendment, says Mr. Justice Brown, will demonstrate that, in passing upon the validity of State legislation under that amendment, the supreme court has not failed to recognize the fact that the law is, to a certain extent, a progressive science; that, in some of the States, methods of procedure which, at the time the constitution was adopted, were deemed essential to the protection and safety of the people, or to the liberty of the citizen, have been found to be no longer necessary; that restrictions which had formerly been laid upon the conduct of individuals, or of classes of individuals, had proved detrimental to their interests, while, upon the other hand, certain other classes of persons (particularly those engaged in dangerous or unhealthful employments) have been found to be in need of additional protection. As to such cases, which involve in large measure the question here before the court, Mr. Justice Brown after stating the doctrine that a general prohibition against entering into contracts with respect to property would be invalid, says that this right of contract, however, is itself subject to certain limitations which the State may lawfully impose in the exercise of its police powers. While this power is inherent in all governments, it has doubtless been greatly expanded in its application during the past century, owing to an enormous increase in the number of occupations which are dangerous or so far detrimental to the health of employees as to demand special precautions for their wellbeing and protection, or the safety of adjacent property. The following cases upon the subject are cited and reviewed: Allgeyer v. Louisiana, 165 U. S. 578; Lawton v. Steele, 152 U. S. 133; Massachusetts v. Alger, 7 Cush. 84; Douglas v. Kentucky, 168 U. S. 488; Daniels v. Hilgard, 77 Ill. 640; Coal Co. v. Taylor, 81 Ill. 590; Com. v. Hamilton Mfg. Co., 120 Mass. 383. "We have no disposition," concludes Mr. Justice Brown, "to criticise the many authorities which hold that State statutes restricting the

hours of labor are unconstitutional. Indeed, we are not called upon to express an opinion upon this subject. It is sufficient to say of them that they have no application to cases where the legislature had adjudged that a limitation is necessary for the preservation of the health of employees, and there are reasonable grounds for believing that such determination is supported by the facts. The question in each case is whether the legislature has adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a particular class. The distinction between these two different classes of enactments cannot be better stated than by a comparison of the views of this court found in the opinions in Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357, and Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. Rep. 730, with those later expressed in Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064."

NOTES OF IMPORTANT DECISIONS.

COMBINATIONS-IN RESTRAINT OF TRADEANTI-TRUST LAW-INTERSTATE COMMERCE.-In three recent cases has arisen the question as to the validity of combinations or trusts in restraint of trade. In United States v. Coal Dealers' Association of California, 85 Fed. Rep. 252, decided by the United States Circuit Court, Northern District California, it was held that under the antitrust law of July 2, 1890, a contract or combination which imposes any restraints whatever upon interstate commerce is unlawful; and that it is immaterial whether or not the restraint is a fair and reasonable one, or whether it has actually resulted in increasing the price of the commodity dealt in. It was further specifically held that where coal is brought from other States and foreign countries to a certain city by importers and dealers, who, by a combination with a local coal dealers' association, regulate the retail prices arbitrarily, and provide against free competition, such combination is one in restraint of interstate commerce, within the meaning of the Act of 1890. In United States v. Addyston Pipe and Steel Co., 85 Fed. Rep. 271, decided by the United States Circuit Court of Appeals, it was held that no contractual restraint of trade is enforceable at common law unless the covenant embodying it is merely ancillary to some lawful contract (involv ing some such relations as vendor and vendee, partnership, employer and employee), and necessary to protect the covenantee in the enjoyment

of the legitimate fruits of the contract, or to protect him from the dangers of an unjust use of those fruits by the other party. The main purpose of the contract suggests the measure of protection needed, and furnishes a sufficiently uniform standard for determining the reasonableness and validity of the restraints. But where the sole object of both parties in making the contract is merely to restrain competition, and enhance and maintain prices, the contract is void.

It appeared that a number of companies manufacturing iron pipe in different States formed a combination whereby the territory in which they operated (comprising a large part of the United States) was divided into "reserved" cities and "pay" territory. The reserved cities were allotted to particular members of the combination, free of competition from the others, though provision was made for pretended bids by the latter at prices previously arranged. In the pay territory all offers to purchase pipe were submitted to a committee, which determined the price, and then awarded the contract to that member of the combination which agreed to pay the largest "bonus" to be divided among the others. It was held that this was an unlawful combination, both at common law and under the Act of 1890, against trusts and monopolies.

In Trenton Potteries Co. v. Oliphant, 39 Atl. Rep. 923, decided by the Court of Chancery of New Jersey, the following is from the official syllabus:

"Contracts in general restraint of trade—that is, restraining a man from pursuing his business anywhere in the United States-are void as against public policy.

"Contracts in partial restraint of trade- that is, those which restrain from pursuing a business within a defined area less than the whole country-will be enforced if the space of exclusion is no wider than is reasonably required for.the protection of the covenantee in the enjoyment of the business to which the covenant relates, and not so large as to interfere with the interests of the public. "In ascertaining whether the exclusion is wider than is required for the protection of the covenantee, and therefore uselessly in restraint of trade, each case will be considered and determined on the facts attendant upon the particular transaction.

"The intention of the purchaser and covenantee to produce from a plant one of several classes of goods for which it was used, does not make a covenant unreasonable which restrains the vendor from competition in the manufacture of all the classes of articles which the plant could produce.

"It is not the intention with which the covenantee bought, but the relation of the covenant to the thing sold, which furnishes the guide by which to ascertain the reasonableness of the restraint imposed by the covenant.

"Where the covenant as expressed is made partial in its area of restraint, only by the naming of exceptions which are colorable and pretentious,

so that the covenant in fact restrains the covenantor from pursuing his business anywhere in the whole country, it is in general restraint of trade, and void, as against public policy.

"Where the area within which the vendor and covenantor is excluded from competition covers whole groups of States over which the business sold did not extend, the covenant is wider than is necessary for the protection of the covenantee in the enjoyment of the thing sold, and is void as against public policy.

"If the covenant is expressed by the parties to exclude from the competition in several separate and distinct places, as to some of which the exclusion is reasonable, while as to others it is not, the court will consider the covenant to be divisible, and will enforce it within the reasonable area; but the court will not select from a contiguous area, which is in itself unreasonable, such a portion as would, had it been distinctly named by the parties, have been deemed to be a reasonable extent of exclusion, and thus force the divisibility of the covenant, and compel its performance in the selected space.

"It is the business as it existed at the time of sale that the vendors convey, and in respect to which they covenanted not to compete, and the reasonableness of the covenant restraining the vendors from competition will be tested by the relation of the extent of territory over which the business was done when it was sold to the area from which they are by the covenant excluded. If they are not shut out from any more space than is necessary to enable the purchaser and covenantee to enjoy the thing sold, the covenant is reasonable, and will be enforced; if they are so excluded, the covenant is injurious to the public, and will not be enforced.

"The expansion of the business, by purchases of like concerns by the covenantees from other parties, by increased capital, and by combinations and control of production and sales, will not be considered to justify the too great breadth of the covenant when it was made.

"Where the members of a manufacturers' association produce nearly the whole quantity of an article necessary to the comfort and health of the community, and have agreed to make their prices such as the majority of the members shall prescribe, a scheme to buy and combine into one company the plants of a majority of the members, obtain the control of prices at which all the members shall sell, put the vendors under a covenant not to compete, and thus secure the ability to dictate the prices which the public must pay for the productions of all the members of the association, is an effort to create a monopoly in an article of general necessity, and is against public policy.

"The covenants to restrain competition, though they may be several as between the vendors and the vendee, will be considered as part of a single plan to secure a monopoly. If they are executory, a court of equity will not enforce them.”

BILLS AND NOTES-BONA FIDE HOLDER-MATURITY-DAYS OF GRACE.-One of the points involved in the case of Hang v. Riley, decided by the Supreme Court of Georgia, is of special value in the practice pertaining to commercial law. It appeared there that a promissory note was negotiated to a third party on the second of the three days of grace allowed by law on such instrument. The question was whether the holder is to be regarded as having taken the note before maturity. The court very properly held that the note does not become due until the last day of grace, and one to whom it is transferred on the second day of grace takes it before maturity, and will be presumed to have been a bona fide purchaser for value. This ruling is in accordance with the authorities on the subject, but as to whether one who takes a note on the third or last day will be protected as a bona fide holder, there is a conflict of authority. Parsons in his work on Notes and Bills considers the correct rule to be, that a note is negotiable, even on the last day of grace. 1 Parsons, Notes & Bills, p. 416. Such is the view entertained by Mr. Daniel also. 1 Daniel, Nego. Inst. § 787a. See also Randolph on Commercial Paper, § 1037. This rule obtains in New York, Illinois, New Hampshire, Maine, and Iowa. See Bank v. Townsend, 87 N. Y. 8; Walter v. Kirk, 14 Ill. 55; Crosby v. Grant, 36 N. H. 273; Farrell v. Lovett, 68 Me. 330; Bosch v. Kassing, 64 Iowa, 312, 20 N. W. Rep. 454. A contrary rule is of force in Massachusetts. Pine v. Smith, 11 Gray, 38. That case does not, however, go further than to rule that a transfer on the last day of grace is not to be considered as before maturity, it being conceded that a transfer on the first or second day of grace would clearly be before dishonor. In Fox v. Bank, 30 Kan. 441, 1 Pac. Rep. 789, it was held that a negotiable bill or note indorsed and transferred on the first day of grace was negotiated before maturity. And see Bank v. Bates, 8 Conn. 505, in which it appeared that the transfer was made on the second day of grace. In the latter case, Bissell, J., said (page 511), in delivering the opinion of the court: "It is too well settled to admit of dispute that, in regard to negotiable notes, the days of grace make a part of the original notes; the days of grace make a part of the original contract. Such a note, payable by the terms of it in 60 days, is in law a note payable in 63 days. Before the expiration of that time, no demand of payment can be made; and, if negotiated on the sixty-first or sixty-second day, it is not negotiated overdue." Thus, it will be seen that, while there is not unanimity of opinion upon the question whether or not a bill or note on which grace is allowable negotiated on the last day of grace is taken subject to existing equities, etc., the entire current of authority is to the effect that the time for payment expressed on the face of such an instrument is not to be regarded as fixing the day upon which the same will become due, but that days of grace are to be computed in determining the date of its maturity.

VENDOR AND PURCHASER ASSUMPTION OF MORTGAGE UNDISCLOSED PRINCIPAL.-It was held by the Supreme Court of Texas, in Sanger v. Warren, that the undisclosed principal of one who as agent takes a deed to himself for land in which he becomes liable for a mortgage thereon, without disclosing his agency, cannot be held for the mortgage debt upon being discovered, under the rule that on discovery of an undisclosed principal recovery may be had against him, since such rule did not apply at common law to instruments required to be under seal, and the force and effect of deeds under the common law was not changed by Rev. St. 1895, art. 4863, providing that no seal shall be necessary to the validity of any instrument in writing, and that the addition or omission of a seal shall not affect the same. The following is from the opinion of the court: "It has long been settled to be a general rule of law that if A contracts with B supposing him to be acting in his own behalf, but afterwards discovers that he was acting for C, A can thereupon elect to hold C upon the contract. The rule is held applicable to written contracts, and, by a process of reasoning not entirely satisfactory, even to those required by statute to be in writing. In the leading case of Higgins v. Senior (1841), 8 Mees. & W. 844, Parke, B., said: "The question in this case, which was argued before us in the course of the last term, may be stated to be whether, in an action on an agreement in writing, purporting on the face of it to be made by the defendant, and subscribed by him, for the sale and delivery by him of goods above the value of £10, it is competent for the defendant to discharge himself, on an issue on the plea of non-assumpsit, by proving that the agreement was really made by him by the authority of and as agent for a third person, and that the plaintiff knew those facts at the time when the agreement was made and signed. Upon consideration, we think it was not, and that the rule for a new trial must be discharged. There is no doubt that, where such an agreement is made, it is competent to show that one or both of the contracting parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand to, and charge with liability on the other, the unnamed principals; and this, whether the agreement be or be not required to be in writing by the statute of frauds; and this evidence in no way contradicts the written agreement. It does not deny that it is binding on those whom, on the face of it, it purports to bind; but shows that it also binds another, by reason that the act of the agent, in signing the agreement, in pursuance of his authority, is in law the act of the principal. But, on the other hand, to allow evidence to be given that the party who appears on the face of the instrument to be personally a contracting party is not such, would be to allow parol evidence to contradict the written agreement, which cannot be done.' Beckham v. Drake, 9 Mees. & W. 79; Cattle Co. v. Carroll, 63 Tex. 48; Heffron v. Pollard, 73 Tex. 96, 11 S. W. Rep. 165.

"The exceptions to the rule, however, are so numerous, broad, and well defined, and rest upon principles of such a fundamental character, that the careful student of the law is driven to the conclusion that they are more important than the rule itself, and that the statement of the rule in such broad language has produced much confusion of thought, and greatly embarrassed, and probably has often misled, the courts in their efforts to apply correct legal principles to particular cases. It is well settled that the rule never had any application to negotiable instruments, no one being chargeable thereon, unless his name appears as a party to the paper in some relation' (authorities above cited). Again, it has been said that 'this broad doctrine, that, when an agent makes a contract in his own name only, the known or unknown principal may sue or be sued thereon, may be applied in many cases with safety, and especially in cases of informal commercial contracts. But it is certain that it cannot be applied where exclusive credit is given to the agent, and it is intended by both parties that no resort shall be had by or against the principal (Story, Ag. § 160a); nor does it apply to those cases where skill, solvency, or any personal quality of one of the parties to the contract is a material ingredient in it. Fry, Spec. Perf. § 149.' Kelley v. Thuey, 102 Mo. 529, 15 S. W. Rep. 62. And the court refused to allow, the undisclosed principal to enforce specific performance of a contract to convey land on the ground that, the owner having contracted for the notes of the agent for deferred purchase money, he could not be compelled to accept those of the principal. Again, it is well settled that the rule never had any application to sealed instruments, especially those which at common law must have been under seal, such as conveyances of land. Briggs v. Patridge, 64 N. Y. 357; Tuthill

V.

Wilson, 90 N. Y. 423; Walters v. Coal Co., 5 De Gex, M. & G. 629; Borcherling v. Katz, 37 N. J. Eq. 150; Farrer v. Lee (Sup.), 41 N. Y. Supp. 672; Evans v. Wells, 22 Wend. 335; Jones v. Morris, 61 Ala. 518.

"According to the weight of authority, if the deed from Bowser and others to Rees had been sealed and delivered by the grantors to Rees, at common law, his acceptance thereof would have made it his deed to the same extent that it would have been if signed and sealed by him also, and that as to him it would have been a sealed instrument. Therefore an action of covenant could have been maintained against him, but not against his principals, Sanger and others, on the contract of assumption therein contained. Finley v. Simpson, 22 N. J. Law, 311, and authorities cited in briefs therein; Golden v. Knapp, 41 N. J. Law, 215; Sparkman v. Gove, 44 N. J. Law, 263; Dock Co. v. Leavitt, 54 N. Y. 35; Bowen v. Beck, 94 N. Y. 86; Maynard v. Moore, 76 N. Car. 166; Smith V. Pocklington, 1 Cromp. & J. 445; Vanmeter v. Vanmeter, 3 Grat. 148, and authorities supra. There are cases holding that it would not at common law have been considered Rees' deed, and that

covenant could not have been maintained thereon against him. Maule v. Weaver, 7 Pa. St. 329; Johnson v. Muzzy, 45 Vt. 419; Trustees v. Spencer, 7 Ohio, pt. 2, p. 149; Goodwin v. Gilbert, 9 Mass. 510; Martin v. Drinan, 128 Mass. 515; Hinsdale v. Humphrey, 15 Conn. 431. Therefore, at common law, the general rule above stated would have had no application to the conveyance to Rees, and his undisclosed principals would not have been liable. We are of opinion that the result is not affected by the following statute: 'No private seal or scroll shall be necessary to the validity of any contract, bond or conveyance, whether respecting real or personal property, or any other instrument of writing, whether official, judicial or private, except such as are made by corporations, nor shall the addition or omission of seal or scroll in any way affect the force and effect of the same.' Rev. St. 1895, art. 4862. It is true the statute renders it unnecessary to place a seal upon a deed, but it does not undertake to give one executed without a seal a different status from what it would have had before if executed with a seal. On the contrary, it provides that the addition or ommission of a seal shall not 'in any way affect the force and effect of the same.' In order for the omission of the seal not to in any way affect its force or effect, the deed must be allowed to retain the only status it had before. When we adopted the common law, its settled rules relating to the construction and effect of deeds became a part of our system. To them we were compelled to resort to determine the nature and extent of the estate conveyed by the deeds, as well as the covenants therein contained, and who were bound or benefited thereby. It was not the intention of said statute to abolish them. As said in Jones v. Morris, 61 Ala. 524, in discussing a more comprehensive statute than ours: "Though a seal may not now be necessary to a conveyance of a legal estate in lands, yet the instrument, the deed of conveyance, which it must still be termed, though shorn of its dignity of a seal, retains all the operation and effect of a deed sealed at common law. Its covenants may be as comprehensive, and, whatever they may be, are as obligatory and its recitals are as incapable of being gainsaid, as if it were sealed with the greatest formality. The estoppel which a sealed instrument, or its covenants, created at common law, is now claimed by the appellee shall be attached to the conveyance by the agents of the appellant. And we cannot doubt that the estoppel which, at common law, grew out of the covenants, or the recitals of the sealed instrument, attach now to an unsealed conveyance of the legal estate in lands. The statute is not so broad in its sweep as to blot out the common law principles which give security to conveyances of real estate. It would be fearful, indeed, if this was the operation of the statute and the freehold in lands was not invested with greater dignity than the fleeting ownership of chattels.' Devlin on Deeds (section 249) says: "The effect of these statutes is simply to dispense

with the necessity of affixing a seal to a deed; but in other respects, as for instance with reference to the doctrine of estoppel, the deed retains the incidents it possessed as a sealed instrument at common law.' The effect of the statute is different as to other contracts, for the placing of the seal thereon at common law raised them from parol to specialty contracts, which cannot be done under the statute."

RECENT PHASES OF CONTRACT LAWIV. PERFORMANCE TO THE SATISFACTION OF THE PROMISOR.

The Question Discussed.-What is the legal effect of an agreement that goods to be delivered or service to be rendered shall be "satisfactory" to the purchaser or recipient? It would certainly seem that if such an agreement means anything, it means that the latter reserves to himself the right of decision as to what is satisfactory, and that his conclusion shall be final and undisturbed.

The cases of this character may conveniently be put under two heads: 1st. Where

the fancy, taste, sensibility or judgment of the promisor are involved. 2d. Where the question is merely one of operative fitness or mechanical utility.

The First Class of Cases.-1. The personal thread which runs through agreements of this kind has had such weight in all the courts that there appears to be a unanimity of judicial opinion that here, at least, the promisee is practically debarred from questioning the ground of decision on the part of the promisor or investigating its propriety. The courts refuse to say that where a man agrees to pay if he is satisfied with a thing of this kind he should be compelled to pay on proof that some one else is satisfied with it. They recognize that in matters of taste and opinion there is no absolute standard as to what is good or bad, and leave each man free to act on his ideas or prejudices as the case may be. Hence we find that where the subject-matter of the contract is a suit of clothes, a bust of the defendant's husband,2 a portrait of the defend

1 Brown v. Foster, 113 Mass. 136, 18 Am. Rep. 463. 2 Zaleski v. Clark, 44 Conn. 218. "The plaintiff undertook to make a bust which should be satisfactory to the defendant. The case shows that she was not satisfied with it. The plaintiff has not yet then fulfilled his contract. It is not enough to say that she ought to be satisfied with it, and that her dissatisfaction is unreasonable; she, and not the court, is en.

ant's daughter, a cabinet organ, a set of artificial teeth, a carriage, a steam heater for a house, a play to be written by an author for an actor,8 a design for a bank note, the question is not one for court or jury to decide, but for the promisor alone. So where the contract gives the master a right to discharge a servant if he is satisfied that the servant is incompetent,10 or to employ him so long as he is satisfactory," or to pay for services if they titled to judge of that. The contract was not to make one that she ought to be satisfied with, but to make one that she would be satisfied with. Nor is it sufficient to say that the bust was the best thing of the kind that could possibly be produced. A contract to produce a bust, perfect in every respect, and one with which the defendant ought to be satisfied is one thing; an undertaking to make one with which she will be satis fied is quite another. The former can only be deter mined by experts; the latter can only be determined by the defendant herself.”

3 Jotson v. Cranage, 39 Mich. 49, 33 Am. Rep. 351. "Artists or third parties might consider a portrait an excellent one, and yet it prove very unsatisfactory to the person who had ordered it and who might be unable to point out with clearness or certainty the defects or objections." And see Hoffman v. Gallaher, 6 Daly, 42; Moore v. Goodwin, 43 Hun, 533.

* McClure v. Briggs (Vt.), 2 Atl. Rep. 583. "The defendant did not take the organ to see whether it an swered the contract or not, for if he had, and it did, he is bound to keep and pay for it, whether satisfied or not; but he took it to see whether it was satisfac tory to him or not. Neither he nor any of his family were competent to judge as to the quality of the organ, and so he called in an expert to test it, and he told him the tone of it was good, and better than that of the Estey organ, which he seemed to like; but not withstanding the opinion of the expert, he was so under the spell of the Estey organ, however, that he still thought he was dissatisfied with the tone of the organ, and if he really thought so, he was so, 'for as a man thinketh in his heart, so is he.""

5 Hartman v. Blackburn, 7 Pitts. L. J. 140. 6 Andrews v. Belfield, 2 C. B. (N. S.) 779.

7 Adams Radiator Co. v. Schrader (Pa.), 26 Atl. Rep. 745.

8 Haven v. Russell, 34 N. Y. (Supp.) 292; Glenny v. Lacy, 1 N. Y. (Supp.) 513.

9 Gray v. Alabama Nat. Bk., 10 N. Y. (Supp.) 5, 14 Id. 155.

10 Cassidy v. Janauschek, 54 Am. Rep. 714. "This clause made the defendant the sole judge of the competency."

11 Spring v. Ansonia Clock Co., 24 Hun, 175; Tyler v. Ames, 6 Lans. 280. "If he is required to prove facts and circumstances which would justify him in feeling dissatisfied with the manner plaintiff filled his office, it would be annulling this clause of the contract, as without such a clause he would have the right to dismiss the plaintiff, if he did not properly perform his duties." Rossiter v. Cooper, 23 Vt. 520; Bush v. Koll (Colo.), 29 Pac. Rep. 919; Frary v. Am. Rubber Co. (Minn.), 53 N. W. Rep. 115; Koehler v. Buhl (Mich.), 54 N. W. Rep. 157. "It is settled law that where a person contracts to work to the satisfaction of his em ployer, the employer is the judge, and the question of the reasonableness of his judgment is not a question